Prior & Prior (No 3) - [2023] FedCFamC1F 311

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Prior & Prior (No 3) [2023] FedCFamC1F 311

File number: MLC 8811 of 2015

Judgment of: BENNETT J

Date of judgment: 14 April 2023

Catchwords:
FAMILY LAW- CHILD SUPPORT- where departure order is made when both liable parent and payee are resident in Australia- where liable parent leaves Australia and is now permanently resident in the United States of America- where the United States of America is a reciprocating jurisdiction- where liable parent seeks a discharge of the departure order and reversion to administrative assessment of child support- where no child support estimate is submitted as part of the evidence at the hearing- where liable parent is required to express the amount he wants to pay by using child support calculator.

FAMILY LAW- PARENTING- where child is permitted to reside with the father in the United States of America for seven months- where father was required to specify arrangements for return- where father fails or neglects to comply by providing flight details- where father equivocates on arrangements for return and alleges that child (now 15 years old) refuses to return to Australia- where independent children’s lawyer requested to participate at next hearing in relation to ascertaining the views of the child.

Division: Division 1 First Instance

Number of paragraphs: 14

Date of hearing: 14 April 2023

Place: Melbourne (via MS Teams)

Counsel for the Applicant: Litigant in person

Counsel for the Respondent: Litigant in person

Counsel for the Independent Children’s Lawyer: No appearance
ORDERS

MLC 8811 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PRIOR

Applicant

AND:
MS PRIOR

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

BENNETT J

DATE OF ORDER:

14 APRIL 2023

THE COURT ORDERS THAT:
1.Subject to paragraph 2 hereof, this matter be adjourned to 2 May 2023 at 10:00 am (“the adjourned date”).
2.IT IS REQUESTED THAT the independent children’s lawyer, personally or by Counsel, participate on the adjourned date and there be liberty to the independent children’s lawyer to seek an administrative adjournment of the adjourned date to an alternative Tuesday or other day (preferably not Monday or Friday) in the event that 2 May 2023 is not convenient.
3.Henceforth, and until a notice of address for service is filed by the relevant party to the contrary, the address for that party appear in the records of the court as follows:-
(a)as to the mother, S Street, Suburb T with her email and telephone number remaining unchanged from the previous address for service; and
(b)as to the father, E Street, U State with his email and telephone number remaining unchanged from the previous address for service.

4.Within 14 days the mother file and serve an affidavit in which she provides details of her taxable income for the years ending 30 June 2019, 2020, 2021, 2022 AND IT IS NOTED THAT this is notwithstanding that the mother has previously complied with orders of the court for the production of copy income…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC1F 311
Decision Date

CaseChat Overview and Summary

This case involved a hearing before Bennett J in the Federal Circuit and Family Court of Australia, Division 1, concerning the matters of child support and parenting arrangements. The primary parties involved were Mr. Prior, the applicant, and Ms. Prior, the respondent. Both parties appeared as litigants in person, and there was no appearance by counsel for the independent children's lawyer. The central dispute involved child support obligations and the return of a child to Australia after being permitted to reside with the father in the United States of America.

The legal issues before the court included whether the existing departure order should be discharged and reverted to an administrative assessment of child support, particularly given the father's permanent residency in the United States. Another issue was the father's failure to comply with the court's order regarding the child's return to Australia. Additionally, the court had to determine the appropriate arrangements for the independent children's lawyer to ascertain and communicate the child's views to the court.

The court's reasoning began with the need for an administrative assessment of child support, which the father had not provided. The court noted that the father's status as an overseas resident might affect the child support assessment, and directed him to use the appropriate calculator. Regarding the child's return, the court highlighted the father's non-compliance with the prior order and his equivocation on the issue. The court stressed the importance of adhering to the stipulated timeframe for the child's return and expressed concerns over the father's lack of commitment to the order. The court also considered the potential application of the Family Law (Child Abduction Convention) Regulations 1986 if the father failed to return the child to Australia. The court ordered the independent children's lawyer to participate in the next hearing to better understand the child's perspective. The court adjourned the matter to allow for the submission of necessary affidavits and estimates regarding child support and ordered the father to make inquiries into the appropriate child support assessment method for his current residency status.

The final orders included an adjournment of the matter to a specified date, with liberty for the independent children's lawyer to seek an administrative adjournment if necessary. The court also ordered the parties to update their addresses for service and mandated the mother to provide her recent income details within 14 days, followed by the father's submission of an estimated child support assessment. Furthermore, the father was directed to determine if his residency status required a different child support assessment method and to provide the appropriate estimate. The court's reasons for decision were to be transcribed and released to the parties.

Orders